Equal rights or exclusive control? The Svalbard Treaty in the age of change

The article concerns the geographical scope of the Svalbard Treaty. This agreement establishes a unique treaty regime for the archipelago and its waters providing equal rights to the resources of the archipelago to all contracting parties. But since the 1920s, the law of the sea has developed significantly. Norway argued that this development gave it the rights, first, to establish fisheries protection zone around the archipelago, and, second, to prohibit any resource extraction activities seaward the Svalbard territorial sea. Norway arrested a number of foreign ships involved in such activities. A recent ruling of the Norwegian Supreme Court, opposed by other states and the EU, has given a boost to academic debates on the matter. The question of whether the Svalbard Treaty, and in particular the equal rights provisions of Articles 2 and 3, apply beyond the territorial sea is not just an interesting theoretical problem. There are three principal issues where it makes a practical difference whether or not the Treaty applies: exploration for and exploitation of oil and gas; exploitation of snow crab; and Norway’s exercise of jurisdiction. Moreover, rapid ice melt and conditions of global warming, together with technological advances and increasingly accessible resources, have awakened competing interests. Thus, this study aims to answer the following research question: “What is the correct interpretation of the Svalbard Treaty as to its applicability beyond the territorial waters?”. There are two opposing positions in the studied literature. The first position (shared mainly by the Norwegian authors) advocates for a restrictive interpretation of the Treaty based on the original meaning of the terms at the time of its conclusion. The second position emphasises the object and purpose of the Treaty, arguing for the need for a dynamic interpretation of the geographical scope, taking into account the development of maritime law. This paper intends to analyse the validity of these assumptions, filling in the gaps of previous research.